Yehuda asked to borrow a car from his friend Ari.
“I’m happy to lend it to you,” said Ari. “However, I don’t have comprehensive insurance because it’s an old car and not worth much. Please drive carefully!”
“Don’t worry, I always try to drive carefully,” replied Yehuda. “Driving carefully is included in the mitzvah of protecting lives!”
“Agreed!” laughed Ari. “Even so, if anything happens to the car – you’ll have to cover the loss.”
Yehuda took the car and parked it outside his house overnight.
During the night, there was a thunderstorm. Strong winds broke a large branch off a tree nearby. The branch fell on Ari’s car, damaging it significantly and breaking a car seat.
In the morning, Yehuda called Ari apologetically. “You’ll never believe what happened!” he exclaimed. “In the storm, a large branch fell and smashed the car.”
“I’m glad that no one was hurt,” replied Ari. “I don’t think I’m going to bother fixing the car, though. It’s not worthwhile to me to invest in it.”
“Then I’ll have to pay whatever the car was worth and buy you a new car seat,” said Yehuda. “Since I borrowed the car, I’m liable even for oness (circumstances beyond control) (C.M. 340:1).
“It’s true that you’re liable,” replied Ari. “However, you don’t have to pay everything. The car seat was old; maybe I can sell the car to someone who wants to fix it.”
“Why should you have to do that, though,” said Yehuda. “If I’m liable for the car – that becomes my headache.”
The two approached Rabbi Dayan. Yehuda asked:
“How much must I pay Ari?”
“In general, halacha imposes liability only for the value of the item in its used condition,” replied Rabbi Dayan. “Therefore, there is no halachic requirement to buy a new item or to pay the replacement cost of a new item. We understand that if a person borrowed a 2010 car and it was totaled, he does not have to replace it with a brand new car, but rather pays the value of a used 2010 car, so that the owner can replace his old car with one in similar condition.
“Admittedly, this halacha is easily applicable to cars, where there is an active used-car market. However, the principle is also true regarding the car seat; the primary liability is to reimburse the loss of used value. Comparable used items can sometimes be procured via eBay or Yad2.
“Moreover, the Gemara (Kiddushin 11a) teaches that if the broken item is still usable and/or of some value, the borrower can return the broken item and just add the differential between the item’s initial value when borrowed and its current value. In this respect, a borrower differs from a thief, who is required to pay the item’s value at the time of theft if he cannot return it intact (C.M. 344:2; 354:5).
“Thus, if the car still has market value in its damaged state or can be sold for parts, that amount is deducted from the liability of the borrower.
“A similar halacha applies to one who damages; he is required to pay the differential between the item’s initial value and the current damaged value. However, many poskim write that if the item can reasonably be repaired, the one who damages is liable for the cost of repair. Regarding a borrower, though, some write that he has no such liability, but one must return the lost differential in value (Shach 387:1; Pischei Choshen, Pikadon 8:15[49]).
“Nonetheless,” concluded Rabbi Dayan, “for the sake of neighborly relations and in appreciation for the loan of the item, some people prefer to replace the broken item with a new one or pay its full value, especially for small items. This is not required but is a welcome gesture of appreciation.”
Verdict: A person who borrowed an item and it became damaged (not through routine usage) is liable for the difference in value between the initial, used value of the item and its current value.
